Wednesday, October 31, 2007

US v. Hernandez-Vasquez, No. 06-50198 (10-31-07). This is an important opinion on Sell forced medication. The defendant faced a 1326 charge, but was found incompetent. The government sought forced medication under Sell v. U.S., 539 US 166 (2003) and the district court granted the motion over objections, stating that "the method of treatment and type of medication to be used" was at the "discretion" of doctors within the BOP. The 9th held, in a lengthy analytical opinion, that to pass muster under Sell, the order must identify (1) the specific medication or range of medications; (2) the maximum dosages to be administered; and (3) the duration of time. In other words, the district court must engage and understand the ramifications of the medication and be conversant; there is no passing the decision to BOP or doctors. The 9th stresses the obligation of the court under Sell to monitor and oversee and to give parameters to the doctors in the context of Sell. This also puts the burden on the government to so identify. This opinion also addresses the standards of review for the various Sell factors. The 9th identifies the first factor -- the seriousness of the crime -- as a legal issue and thus reviewed de novo, while the other factors, such as governmental interests at stake, are reviewed for clear error. Finally, the 9th encourages the district court to undertake a Harper analysis as to dangerousness of the defendant to himself or others first.

US v. Preciado, No. 06-50649 (10-31-07). The 9th examines an enhancement for "use of a minor" in the context of smuggling drugs across the border. The defendant agreed to drive 150 pounds of marijuana across the border, and weeks later picked up the van with several of her children accompanying her. The youngest (age 2) was left with a sister. The defendant was caught at the border. The 9th affirmed the enhancement because the court did not err in finding that the children were used as decoys and were not just along for the ride or there because of necessity. The defendant had notice, this was planned, and there was available child care or someone to look after the children.